Barram & Farrell
[2021] FedCFamC2F 46
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barram & Farrell [2021] FedCFamC2F 46
File number(s): NCC 1733 of 2021 Judgment of: JUDGE BETTS Date of judgment: 7 September 2021 Catchwords: FAMILY LAW – parenting – one child aged 14 – where the child was the subject of care and protection proceedings in the Children's Court of New South Wales (NSW) – where the mother is a resident of NSW and the father is a resident of the Northern Territory (NT) – where the child has been retained by the father in the NT – where the mother cannot get the child back because of the capricious operation of the child protection laws and their intersection with the Family Law Act 1975 – court has no jurisdiction pursuant to section 69ZK(1)(b) of the Family Law Act 1975 – all applications dismissed Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 11 Date of last submission/s: 7 September 2021 Date of hearing: 7 September 2021 Solicitor for the First Applicant: DJ Chapman Solicitors Solicitor for the First Respondent: Ward Keller Lawyers ORDERS
NCC 1733 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARRAM
Applicant
AND: MR FARRELL
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Barram & Farrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
These proceedings relate to the parenting of X, who is 14 years of age. X has had a somewhat tumultuous life in that he was the subject of care and protection proceedings in the Children's Court of New South Wales (Town B) from a very young age. In February 2009 the Children's Court made a final order vesting sole parental responsibility in the New South Wales Minister of Community Services (as he/she was then known). This order was to run for a period of two years, following which the mother was then to have sole parental responsibility for X, to the exclusion of the father.
The history of those Children's Court proceedings is not necessarily relevant to my decision today, except to note that there are serious allegations of risk that must have been before the Children's Court in relation to each of the parents. There seem to be issues relating to the mother's past use of drugs, and certainly there is evidence of the father’s past perpetration of family violence. There may well be numerous other risk factors that were also relevant to the decision of the Children's Court.
The current situation that brings the parties before this Court is tragic and it reflects the fractured nature of the application of child protection laws throughout the Commonwealth of Australia. I have specifically directed that these reasons be provided so that the relevant Parliamentarians can consider them.
Specifically, the mother is a resident of NSW and the father is a resident of the Northern Territory. In January this year, the mother sent X to visit the father there. X has remained in the father's care ever since.
The mother cannot get him back because of the capricious operation of the child protection laws and their intersection with the Family Law Act. In particular, this court has no jurisdiction to make any orders in relation to these proceedings pursuant to section 69ZK(1)(b) of the Family Law Act as the court does not have the written consent of the New South Wales Department of Communities and Justice (as it is now known, hereafter “DCJ” for short).
DCJ has apparently not responded to requests that it give its consent, which is somewhat bewildering to me, and frankly quite disappointing. It reflects poorly on them.
Of course, if consent from the DCJ is forthcoming, then a fresh application can be filed in this Court which will give it such urgency as it can.
Absent their consent, the practical effect of DCJ’s silence is that:
· this Court cannot make any orders whatsoever of a substantive nature;
· the mother cannot therefore require the father to return X to her;
· the father cannot obtain an order from the court either;
· the father has no legal basis to keep X as he does not have the benefit of a Children's Court order.
A completely lawless situation thus arises where a 14 year old boy, who may well be at risk and certainly subject to some instability in his life, is beyond the jurisdiction of this court because he has crossed the border of the Northern Territory. I consider that a great shame, if not a disgrace frankly, and it highlights the need for Parliamentarians across this nation to address issues of the enforceability of child protection laws across state and territory borders, and whether there ought to be some amendment to the Family Law Act to accommodate a situation such as this. I appreciate that there are all manner of political considerations which are no interest to this Court, as well as all manner of budgetary considerations.
I note in closing that the father indicates that he intends to bring proceedings in the Children's Court at Town B to revoke the earlier order.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Dated: 7 September 2021
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